Case Update (25 April 2025): In re. Kelly & Turner; repeated violence met clear and convincing burden of a grave risk that warranted a judge not returning an abducted child
The parties are unmarried parents of a 27-month-old daughter who was removed from Mexico and brought to the United States by her Respondent Mother in June 2024. Petitioner Father sought the child’s return using the Hague Abduction Convention. The U.S. District Court for the D. of Oregon made credibility determinations and factual findings, and ultimately denied the Petitioner’s request to return the child.
The court found that both parties are U.S. citizens, and met in Oregon in March or April 2020. Petitioner, serving as a “spiritual healer”, provided treatment to Respondent who had just gone through a divorce. The treatment apparently included Petitioner dispensing, and Respondent taking, “hallucinogenic Schedule I medications”. Respondent moved into Petitioner’s trailer, at that time, and the two began traveling the country, staying on public land for “no more than two weeks at a time.” After 2 years of traveling, in approximately January 2022, they returned to Oregon. It was around this time that the court finds the couple had a verbal altercation and conflict ensued. In March 2022, Respondent agreed to stop taking birth control, which resulted in the pregnancy. During the pregnancy, the couple agreed to move to Mexico. The child was born in a hospital in San Diego on January 29, 2023. The birth had complications, but on February 3, 2023, they returned to Mexico with the intention of living there and raising their child. Even though they did not, at any time, seek out a visa to legally reside in Mexico, “[t]he parties did, however, intend at that time to stay and raise [the child] in Mexico.” They lived in 3 different homes in Mexico until June 2024, when the Respondent removed the child from Mexico to the USA.
The court’s opinion dove into a variety of incidents of violence between the couple during the time they lived together. The Court stated that Petitioner “responded with more and more rage. His escalating behavior was credibly described by witnesses or caught on video.” The court noted that the Respondent “did not report these incidents of abuse to the Mexican police. She did not speak Spanish, and she did not believe they would help her. She believed that to get help she needed to return to her home country, the United States.” Respondent left surreptitiously in the middle of the night on June 2, 2024, leaving a note explaining that she did not feel safe, and that she needed to leave in a secretive manner to be safe. That morning, Petitioner started texting Respondent, and advised her that it was illegal for Respondent to have taken the child. He promptly filed an application with the Mexican Central Authority for the child’s return, and posted on a website the child’s birth certificate and Respondent’s passport, listing her as an abductor. Respondent sought and obtained a temporary restraining order against Petitioner in California. A few weeks later, there were email exchanges, and Petitioner threatened suicide. In the subsequent months, Petitioner posted some videos online directed at the Respondent. The California court ultimately entered a 2 year domestic violence protective order, and around this time, the Respondent relocated to Oregon, where she sought and obtained a similar protective order.
The key issue at trial was whether returning the child to Mexico would expose the child to a grave risk of harm such that the court need not order the return. The court noted that spousal violence may establish a grave risk if it occurs in the presence of the child. Also, repeated physical and psychological abuse by one parent of the other, in the presence of a child, is likely to create a risk of psychological harm. Courts have also found a grave risk when the petitioning parent engaged in repeated acts of violence. Isolated or limited incidents of spousal abuse, even if witnessed by the child, tend to not meet the clear and convincing burden of proof. The court, in this case, concluded that certain violent acts occurred in the presence of the child and “inspired fear” in the child. It further found there was a generalized pattern of violence, a history of spousal abuse, repeated disobedience of court orders, violence and a violent temper directed at the Respondent while she was holding the child, which evidenced a disregard for the child’s safety and an inability to control the Petitioner’s temper. The court found Petitioner downplayed his temper, and does not accept the seriousness of his conduct. The court found that he has no intention of seeking help. At trial, the Petitioner indicated that he would respect ameliorative measures, if they were ordered to permit the return of the child. He testified that he would be willing to attend anger management classes if it was a condition that permitted the child’s return. But, when counsel provided a post-trial brief, undertakings and ameliorative measures were not addressed, so the court concluded that the Petitioner did not sufficiently raise the issue, and it was not going to address it. Regardless, the court found that anger management was insufficient to protect the child.
The court denied the Petitioner’s request to return the child to Mexico.
